Frank Malke having, on March 1, 1991, filed a complaint with the Wisconsin
Employment Relations Commission alleging that Ansul Fire Protection had committed
unfair labor practices within the meaning of Secs. 111.01, 111.04, 111.05 and
111.06 of the Wisconsin Employment Peace Act, herein WEPA; and Ansul Fire
Protection, by Counsel, having, on March 8, 1991 filed a Motion to Dismiss for
Lack of Jurisdiction; and the Commission having, on March 25, 1991 appointed
Lionel L. Crowley, a member of its staff, to act as Examiner and to make and
issue Findings of Fact, Conclusions of Law and Order as provided in Sec.
111.07(5) Stats.; and Complainant having, on April 30, 1991, filed a response to
Respondent's motion; and the Examiner having considered the Motion and arguments
of counsel and being fully advised in the premises, makes and issues the
following Findings of Fact, Conclusions of Law and Order.

FINDINGS OF FACT

1. That Frank Malke, hereinafter referred to as the Complainant, is an
individual whose address is W1512 County Trunk B, Marinette, Wisconsin 54143.

2. That Ansul Fire Protection, hereinafter referred to as the Respondent,
is a wholly owned subsidiary of Grinnell Corporation and is an employer within
the meaning of Sec. 111.02(7), Stats. and its principal offices are located at
One Stanton Street, Marinette, Wisconsin 54143.

3. That Complainant had been employed by Respondent for about 16 years
until his termination on May 30, 1990; that during the summer of 1989, the
Complainant was involved in an effort on behalf of the United Paperworkers
International Union, AFL-CIO, CLC, hereinafter referred to as the Union, to
organize certain of the Respondent's workers; that Complainant was active on
behalf of the Union between the summer of 1989 and May 10, 1990; that an election
was held by the National Labor Relations Board, hereinafter NLRB, on May 9 and
10, 1990 and employes voted against representation by the Union; and that no
objections were filed and the results were certified by the NLRB on May 18, 1990.

4. That on or about May 24, 1990, Complainant was informed by Respondent
that he had an excess amount of down time and that it was believed that
Complainant was willfully hindering production; that by a letter dated May 25,
1990, the Complainant was suspended without pay pending further investigation for
willfully hindering production; and that Complainant was discharged on May 30,
1990 for willfully hindering production.

5. That on June 11, 1990, the Union on behalf of the Complainant filed a
charge of an unfair labor practice with the NLRB alleging that Complainant was
discharged because of his activities on behalf of the Union or because of his
other protected concerted activities; that the NLRB by a letter dated July 26,
1990 informed the Union that the charge noted above had been carefully
investigated and considered and it was concluded that the evidence was not
sufficient to controvert the Respondent's contention that Complainant was
discharged for willfully hindering production, and therefore, it was declining
to issue a complaint; that the matter was appealed to the NLRB's General Counsel;
and that by a letter dated August 15, 1990, the appeal was denied by the NLRB's
General Counsel.

6. That on March 1, 1991, the Complainant filed the instant complaint with
the Commission alleging that Respondent had committed unfair labor practices
contrary to enumerated statutes including provisions of Chapter 111; that in his
complaint, the Complainant alleged that the reason for his discharge was
pretextual and the real reason was based on his protected concerted activities;
and that the complaint alleged that the Complainant did not willfully hinder
production and Complainant sought reinstatement and back pay.

7. That on March 8, 1991, Respondent, by Counsel, moved to dismiss the
complaint on the basis that the Commission's jurisdiction was preempted by the
NLRB who has exclusive primary jurisdiction over the matter; that on April 30,
1991, Complainant, by Counsel, filed a brief in opposition to Respondent's Motion
to Dismiss wherein primary jurisdiction was conceded to lie with the NLRB but it
was argued that the Commission has jurisdiction because the decision by the NLRB
not to issue a complaint may have been made on the basis of a fraud committed
against it by Respondent; and that exceptions to the exclusive jurisdiction in
the NLRB apply and the Commission should deny the Motion.

8. That Complainant has not denied and Respondent admits that Respondent
is engaged in a business affecting commerce within the meaning of the NLRA and
is covered by the jurisdictional standards of the National Labor Relations Board.

Upon the basis of the above and foregoing Findings of Fact, the Examiner
makes the following

CONCLUSIONS OF LAW

1. That the Wisconsin Employment Relations Commission does not have
jurisdiction to determine any violations of Secs. 103.14(2), 103.18, 103.51,
134.01, 134.02, 134.03 or the constitutional guarantees of Free Speech and
Association.

2. That Respondent Ansul Fire Protection is an employer engaged in
interstate commerce within the meaning of the National Labor Relations Act, as
amended, and meets the jurisdictional standards of the National Labor Relations
Board.

3. That Complainant's claim that Respondent committed unfair labor
practices in violation of Chapter 111 of the Wisconsin Statutes by retaliating
against Complainant for engaging in union activity involves conduct which is
protected by Section 7 or prohibited by Section 8 the National Labor Relations
Act.

4. That it has not been demonstrated that the National Labor Relations
Board has declined to assert jurisdiction over the conduct which gives rise to
the complaint of unfair labor practices.

5. That the Wisconsin Employment Relations Commission is preempted from
asserting its jurisdiction to regulate the Respondent's conduct which gives rise
to the complaint of unfair labor practices.

2 On the basis of the above and foregoing Findings of Fact and Conclusions
of Law, the Examiner makes the following

That Complainant's complaint of unfair labor practices be, and the same
hereby is, dismissed in its entirety.

Dated at Madison, Wisconsin this 30th day of May, 1991.

WISCONSIN EMPLOYMENT RELATIONS
COMMISSION

By

Lionel L. Crowley, Examiner

ANSUL FIRE PROTECTION

MEMORANDUM ACCOMPANYING

FINDINGS OF FACT, CONCLUSIONS

OF LAW AND ORDER

In his complaint initiating these proceedings, the Complainant alleged that
he was terminated because of his concerted protected activity and the
Respondent's reasons for the termination were pretextual. The Complainant
alleged violations of Chapters 103, 111 and 134 of the Wisconsin Stats. as well
as both the State and Federal Constitutions. The Respondent filed a Motion to
Dismiss on the basis that the WERC has no jurisdiction in this matter as
exclusive jurisdiction was vested in the NLRB. The Complainant responded to said
Motion by asserting that certain exceptions apply to the general rule that the
NLRB has exclusive jurisdiction and contends that the instant complaint comes
within these exceptions and insists the WERC should exercise its jurisdiction to
hear this matter.

In San Diego Building Trades Council v. Garmon, supra,
the U.S. Supreme
Court articulated the general rule of preemption as follows:

When it is clear or may fairly be assumed that the activities which
a State
purports to regulate are protected by Sec. 7 of the National Labor Relations Act,
or constitute an unfair labor practice under Sec. 8, due regard for the federal
enactment requires that state jurisdiction must yield. To leave the States free
to regulate conduct so plainly within the central aim of federal regulation
involves too great a danger of conflict between power asserted by Congress and
requirements imposed by state law.

. . .

When an activity is arguably subject to Sec. 7 or Sec. 8 of the
Act, the
States as well as the federal courts must defer to the exclusive competence of
the National Labor Relations Board if the danger of state interference with
national policy is to be averted.

In Local 248 v. WERB, 11 Wis.2d 277 (1960), cert. denied
365 U.S. 878
(1961), our Supreme Court held that the Commission is preempted from exercising
its jurisdiction under the Wisconsin Employment Peace Act where the conduct at
issue arguably falls within the scope of the Labor Management Relations Act
administered by the National Labor Relations Board. See also Moreland
Corp. v.
Retail Store Employees Union, 16 Wis.2d 499 (1962); Markham v. American
Motors
Corp., 22 Wis.2d 680 (1964); Hanna Mining Co. v. District 2, etc.,
Asso., 23
Wis.2d 433 (1964); Klotz v. Wathen, 31 Wis.2d 19 (1966); and Arena v.
Lincoln
Lutheran of Racine, 149 Wis.2d 35 (1989). Given the Court's holding, the
Commission has consistently concluded that it has no jurisdiction over unfair
labor practice complaints involving conduct and parties as to which the National
Labor Relations Board would exercise its jurisdiction. (2)

The U.S. Supreme Court in Garmon has recognized two exceptions to
the
preemption rule, namely:

1) Activities that are merely a peripheral concern of the
federal law;
and

2) Conduct that touches interests so deeply rooted in local
feeling and
responsibility.

The Court has held that state jurisdiction to enforce its laws prohibiting
violence, (3) defamation, (4) the intentional infliction of emotional distress,
(5)
or obstruction of access to property (6) is not
preempted by the NLRA. Thus, the
U.S. Supreme Court does not apply the Garmon rule in a literal mechanical
fashion, but is flexible and has stated that the critical inquiry is not whether
the State is enforcing a law relating specifically to labor relations or one of
general application but whether the controversy presented to the state court is
identical to or different from that which could have been, but was not, presented
to the Labor Board. (7) Where the conduct at
issue is arguably within the compass
of Sec. 7 or Sec. 8 of the NLRA, the state must defer to the exclusive competence
of the NLRB. (8) The Commission has
recognized that the preemption doctrine set
forth in Garmon, supra, is effective to preempt jurisdiction in cases
where the
NLRB has asserted jurisdiction over matters involving substantially identical
allegations. (9) The Commission has not
expressly stated that assertion of
jurisdiction by the NLRB is a necessary precondition to preemption, rather the
Garmon doctrine precludes the assertion of jurisdiction unless and until the
NLRB
declines to assert jurisdiction. (10)

It is necessary to review the complaint and apply the above principles to
determine whether the Garmon doctrine precludes jurisdiction by the
Commission.
The complaint alleges that Complainant was terminated because of his engaging in
concerted protected activity on behalf of the Union and that the Respondent's
stated reason for discharging him was pretextual and not substantiated.
Essentially, this is the same case presented to the NLRB. It seems quite clear
that the gravamen of the complaint involves conduct which is protected by Section
7 or prohibited by Section 8 of the National Labor Relations Act and thus, under
Garmon, the NLRB has exclusive jurisdiction and the Commission is totally
preempted from all jurisdiction. There are no allegations in the complaint that
either of the two exceptions to Garmon apply. There was no allegation made
that
Respondent was an employer who did not meet the jurisdictional standards of the
NLRB. In fact, a charge was filed and investigated and the General Counsel
affirmed the decision not to issue a complaint based on the merits of the case.
As the NLRB has not declined jurisdiction, the Commission is preempted from
taking jurisdiction. In its response to the Respondent's Motion to Dismiss,
Complainant asserts that the NLRB dismissed the complaint because of fraud.
Inasmuch as the Commission's jurisdiction has been preempted by the NLRB, it
follows that it has absolutely no jurisdiction to review the procedures utilized
by the NLRB in the exercise of its jurisdiction. In other words, where the
Commission has been totally preempted from jurisdiction in the matter, it has no
jurisdiction of the merits or procedure. Therefore, the complaint has been
dismissed because the Commission lacks jurisdiction over the complaint.

The complaint alleged violations of statutory provisions other than Chapter
111 as well as constitutional violations. The Commission has authority only with
respect to Chapter 111 and the complaint has been dismissed with respect to the
other alleged statutes for lack of jurisdiction without reference to the Garmon
doctrine.

The Respondent has requested that it be awarded attorneys fees as the
complaint is frivolous and contrary to clearly settled legal principles. The
Commission has held that attorneys fees are warranted only in exceptional cases
where the allegations or defenses are frivolous as opposed to debatable. (11) The
complaint has not been shown to be so frivolous, in bad faith or devoid of merit
so as to warrant the imposition of attorneys fees and Respondent's request for
same is denied.

Dated at Madison, Wisconsin this 30th day of May, 1991.

WISCONSIN EMPLOYMENT RELATIONS
COMMISSION

By

Lionel L. Crowley, Examiner

1.Any party may file a petition for review with the
Commission by following
the procedures set forth in Sec. 111.07(5), Stats.

Section 111.07(5), Stats.

(5) The commission may authorize a commissioner or examiner to make
findings and orders. Any party in interest who is dissatisfied with the
findings or order of a commissioner or examiner may file a written
petition with the commission as a body to review the findings or order. If
no petition is filed within 20 days from the date that a copy of the
findings or order of the commissioner or examiner was mailed to the last
known address of the parties in interest, such findings or order shall be
considered the findings or order of the commission as a body unless set
aside, reversed or modified by such commissioner or examiner within such
time. If the findings or order are set aside by the commissioner or
examiner the status shall be the same as prior to the findings or order
set aside. If the findings or order are reversed or modified by the
commissioner or examiner the time for filing petition with the commission
shall run from the time that notice of such reversal or modification is
mailed to the last known address of the parties in interest. Within 45
days after the filing of such petition with the commission, the commission
shall either affirm, reverse, set aside or modify such findings or order,
in whole or in part, or direct the taking of additional testimony. Such
action shall be based on a review of the evidence submitted. If the
commission is satisfied that a party in interest has been prejudiced
because of exceptional delay in the receipt of a copy of any findings or
order it may extend the time another 20 days for filing a petition with
the commission.